Across Jurisdictions and Web Domains, Questions of Privacy and Online Anonymity Persist

There is a tug-of-war going on right now on the Internet and in the courts between protecting online anonymity and the equally privacy-related question of accountability when one individual's postings defame or expose personal information about another.

Add to this issues of truth in reporting for journalists and the questions of how private and anonymous what we post online and apply the laws and mores that vary from jurisdiction to jurisdiction, and the result appears to be the onslaught of legal actions, pending cases and unanswered questions that surround the term "online anonymity."

A report in The Inquirersuggests the UK Information Commissioner's Office (ICO) is among regulators considering how "advances in the Internet and the scale of personal information that it produces are making staying anonymous a challenge."

As Information Commissioner Christopher Graham put it in a recent statement on anonymization, "Ensuring important personal information remains anonymous is an ever-increasing challenge. Just by going about our everyday lives, our movements, browsing habits and personal information are constantly being captured."

Indeed, a recent legal case in the UK is just one of several on both sides of the Atlantic that illustrate the push-and-pull between the privacy of anonymous posters and the privacy of those they are posting about.

OUT-LAW.comreported on the UK High Court's decision that The Daily Mail was not required to disclose the identities of individuals behind separate "anonymously posted comments on its Web site because to do so would breach their rights to privacy" in a case where an individual had sought the information as part of a defamation suit based on their postings about her.

The court determined "the posters' rights to privacy were more important than the woman's right to take legal action," the report states, quoting one justice's statement that such disclosure of the anonymous website commentators' identities "engaged the users' rights to respect for their private and family lives under the European Convention on Human Rights." Similar cases have been under review in Canada and the U.S. in the past year, including one where a Nova Scotia Supreme Court judge ordered newspapers to provide the identities of anonymous commentators in legal cases such as defamation suits, stating, "They, like other people, have to be accountable for their actions."

Nova Scotia Supreme Court Justice Heather Robertson was quoted in The Globe and Mail when the decision came down, stating, "You need to identify these individuals who have committed the alleged defamation, and you can't start an action until you know who they are."

In the U.S., a similar decision came down when a New York judge ordered a website to reveal anonymous posters sharing defamatory videos about a former model, prompting what Mary Elizabeth Williams described in a feature for Salon as a reason for concern that, with legal intervention, "the question of privacy&emdash;and exactly how easily Google or Facebook or Twitter might reveal our personal information--can be downright chilling."

Fast-forward to the present, and related cases have come to light in the U.S. and Spain, just to name a few. The Indianapolis Star recently highlighted a judge's decision that newspaper sites would be required to provide the identities of online posts made under pseudonyms as part of a defamation suit.

Meanwhile, in what could be seen as a flip-side case related to remaining private online, Spain's data protection agency is calling for Google to remove certain links to individuals' personal information from its search results in what privacy expert Viktor Mayer-Schönberger has suggested is a case that sets society's right to remember its past against the individual's right to personal privacy.

Most recently in the U.S., the California Supreme Court has sent the case of a juror ordered to hand over social networking posts he made during a criminal trial to a lower court in what the juror's attorney has suggested "is a significant issue and a timely issue for society today because the law has not caught up with technology..."

For businesses, the question of online anonymity as a protection for privacy or as a tool to invade others' privacy appears to be spurring some to action to protect anonymity and others to track those anonymous posters on their own.

Social network Thrsti, for example, is based on the premise that "users no longer have to fear that they will be exposed online" by allowing them to post their comments without sharing identifying images, according to a press release about the start-up online community.

On the other end of the spectrum, a case came to light within the past years of hotels using various data to unveil the identities of individuals who believed they were reviewing the lodging establishments anonymously online.

From jurisdiction to jurisdiction, from Web site to Web site and from businesses to businesses, the questions spurred by this push-and-pull over how anonymity and privacy interrelate remain.

According to Judge Thomas Vanaskie in a feature for The Times-Tribune, when it comes to Internet postings, "There's this false belief of being anonymous, but all of this information is stored somewhere along the way."

Or, as Prof. Lilian Edwards of Scotland's University of Strathclyde described it in The Christian Science Monitor, "from a legal and ethical point of view, the problem is that my privacy is in conflict with your right to freedom of expression. If I write on my blog 'John was drunk last night,' that's personal information about John, but it's also my right to express myself."

And, as the UK's Graham has pointed out, that information does not always need to be so pointed to violate individuals' privacy online.

"The information that can identify someone is no longer simply their name and address. It's their number plate scanned by a traffic camera, or the digital fingerprint that they leave behind when they file their tax return or renew their local authority parking permit online," Graham is quoted as stating in The Inquirer report. "How can we make sense of the big picture without compromising privacy?"

What do you think?

Do you believe there is a way to strike a balance between the privacy and right of free expression for online posters who believe they are responding anonymously and the rights of those who may be finding their own personal privacy violated when others exercise those rights? Let us know.

Written By

Jennifer Saunders, CIPP/US

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